Terms and Conditions

HEIDOLPH INSTRUMENTS GMBH & CO. KG - TERMS AND CONDITIONS OF THE ENTREPRENEUR/B2B ONLINE SHOP

Scope; Deviating Terms and Conditions; Form

1.1

All contracts entered into by customers with us in the course of our business relations via our entrepreneur/B2B online shop, i.e. including all future contracts, shall be governed exclusively by these General Terms and Conditions (“GTC”) of the B2B online shop. The cutomer explicitly acknowledges these GTC to be binding for both the contract to be entered into and all future contracts, even if the cutomers´s documents, e.g. the order form or the contract, include a reference to the customer’s (or its customer's) own terms and conditions and claims priority for the same. Neither our silence nor our performance of the contract shall be deemed to imply consent to the customer´s terms and conditions. Any deviations from the GTC required in the single case are declarations only binding if confirmed by us in writing.

1.2

Customer´s declarations and notifications that are relevant in law with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory form requirements and further proof, especially in case of doubts about the legitimacy of the declarant, shall remain unaffected.

No Sales to Consumers (Verbraucher); Proof of Entrepreneurial Status

2.1

There will be no deliveries to or contracts entered into with consumers (Verbraucher) within the meaning of Section 13 of the German Civil Code (BGB) or any equivalent provision according to the law applicable in the territory the customer has its seat in the course of our business relations, i.e. including all future contracts. Any deliveries will only be made and contracts will only be entered into with entrepreneurs (Un-ternehmer) within the meaning of Section 14 the German Civil Code (BGB) or within the meaning of an equivalent provision according to the law applicable in the territory the customer has its seat.

2.2

The customer must proof its entrepreneurial status in the course of the ordering process.

Order/Offer; Acceptance; Conclusion of the Contract; Language of the Contract; Technical Steps leading to the Conclusion of the Contract Online (Online-Vertragsabschluss)

3.1

If a contract will be concluded via our B2B online shop on our website(s) at https://shop.heidolph-instruments.com/en, the following shall apply:

(a)

The items presented in our B2B online shop, especially in the shopping cart, in brochures or in other forms, merely represent a non-binding invitation to the customer to make an offer to conclude a contract; this holds true unless the customer is provided with an offer prepared individually for the customer.

(b)

By clicking the “Add to shopping cart” button, the customer will initiate the ordering process.

(c)

After the customer has given all information required in connection with the order, the customer will be forwarded to the next page by clicking on the “Continue” button. On the last page of the ordering process, the customer will receive a complete overview of the items ordered and all information given. Input errors can be corrected by the customer by clicking on the “Back” button and, if necessary, by entering the changes requested or cancelling the ordering process and restarting it.

(d)

The customer will be granted the option to pay the purchase price in advance. The customer may also have the option to choose between other different payment methods. The decision on which other payment methods we will offer to the customer lies with us. For example, we may grant the customer the option to pay the purchase price by invoice, credit card, PayPal or instant bank transfer. In the case of payment by PayPal, the time of payment corresponds to the time of the binding order by customer. If we offer the customer the option of paying the purchase price by PayPal, the following additional conditions apply:

(i)		Payment will be made to the payment service provider PayPal (Europe) S.à.r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg ("PayPal") by means of the PayPal payment method provided or chosen by customers. Customers are redirected directly to PayPal at the end of the ordering process. If the customer selects "PayPal" as the method of payment during the online ordering process, he/she also issues a payment order to PayPal by clicking the button that concludes the ordering process. Customer can find PayPal’s terms and conditions at the PayPal Homepage. The payment process is in the sole sphere of PayPal when customer opts for PayPal as the payment method.
(ii)		If the customer pays by means of a payment method offered by PayPal that can be selected in the online ordering process, the agreements stipulated in these General Terms and Conditions apply to the acceptance of our offer. In particular, we do not accept customer's offer at the time the customer clicks the button that completes the order and payment process.
(iii)		In the event that the contract is not concluded e.g. because we do not accept the customers offer within the further process, any payments already made via PayPal will be refunded solely via PayPal.
(iv)		When paying via PayPal, the customer might have the following payment methods at his disposal whereby the respective PayPal terms and conditions will apply: direct debit, credit card, purchase on account.
(v)		If customer makes its payment via PayPal, we assign our payment claim arising out of a yet to be concluded contract to PayPal at the moment the payment claim comes into existence. A debt-discharging payment can only be made to PayPal in accordance with the terms and conditions and the selected or stated payment deadline of PayPal.
(vi)		For the use of third-party payment and billing providers, such as PayPal, additional conditions and costs of this provider may apply, which are to be paid by the customer.

(e)

For customers located within the European Economic Area we will not differentiate between payment methods on the basis of the customer´s nationality, place of residence or establishment, location of the payment ac-count, place of establishment of the payment provider or place of issue of the payment instrument.

(f)

If payment will be made by advance payment, instant bank transfer and credit card, payment shall be due upon conclusion of the contract. Thus, the customer shall always be obliged to perform in advance. In the case of payment by invoice, payment shall be due within seven (7) calendar days of receipt of the invoice. A deposit paid at the time of ordering will be refunded if the contract will not be concluded.

(g)

Delivery shall be made - subject to other agreements - DAP (Incoterms 2020) to a place selectable by the customer within the European Economic Area (for the sake of clarity: excluding the United Kingdom).

(h)

An order will only be possible if:

(i)

The GTC will be accepted by the customer by clicking on the corresponding field on the last page of the ordering process. Printing and/or saving the GTC will be possible before accepting and sending the order to us.

(ii)

The customer will confirm its entrepreneurial status by clicking and filling in the corresponding fields and will truthfully state it´s VAT identification number (Umsatzsteueridentifika-tionsnummer).

(i)

By clicking the “Order with obligation to pay” button on the last page of the ordering process the customer places a binding order (offer within the meaning of Section 145 the German Civil Code (BGB)). The customer shall be bound to its order for seven (7) calendar days, starting with the day the customer has sent the order.

(j)

After receipt of the order, the customer will receive an order confirmation (Bestellbestätigung) by e-mail. This order confirmation does not constitute an acceptance of the customer’s order by us, but merely documents that the order has been received. We need to review the order prior to acceptance already for compliance reasons, as single items offered may be so-called “dual-use goods” within the meaning of Regulation (EU) 2021/821.

(k)

A contract shall only be concluded when we accept the customer´s order by way of a separate acceptance of the respective order (Auftragsbestätigung) or, at the latest, however, when the customer accepts the delivery.

(l)

Details of the order (contractual provisions and these GTC) will also be contained in the order confirmation received by the customer via e-mail after we have received the order. The customer shall be responsible for permanently saving or printing the order confirmation (or the delivery note in case of acceptance by delivery) so that the contractual provisions will be available to the customer in a permanent form. We will store these con-tractual documents, which together form the text of the contract.

(m)

We are not subjected to any codes of conduct. The language of the contract shall be English.

Information about our Items; Indication of the Nature of Items; Product Information; Item Markings

4.1

Product documents, illustrations, details of performance, weights and dimensions in our catalogues, product sheets and on our Internet pages - in particular our entrepreneur/B2B online shop – referring to the items offered, will be as accurate as possible. Unless otherwise stated or agreed, these only represent approximate values and especially shall not constitute a statement of condition or a guarantee of the items.

4.2

Any markings on the items that are required by law (such as CE marking, WEEE marking) as well as batch numbers or other identification features do not contain any indication of the nature of items or guarantees vis-à-vis the customer, but are affixed by us according to statutory provisions in order to comply with our regulatory obligations.

4.3

The customer shall be responsible for reading the associated product information carefully before using the items and to use the items with due care, especially if the items may pose a risk to the health of the customer or third parties.

4.4

The customer shall be responsible for the marketability of the items from the time of the transfer of risk. The customer must comply with the relevant regulatory and legal provisions.

4.5

Items purchased from us may be sold by the customer only for civil applications and end users. Sale for use in the activities listed below shall be strictly prohibited unless approved and authorised by the competent official government institution: use in military activities, use in nuclear explosive operations or unsafe controlled nuclear fuel cycle activities, and use in activities related to the development or production of chemical or biological weapons. It shall also be prohibited to sell or re-export the items to sensitive companies or persons or third countries subject to sales or export controls under applicable international export and customs regulations. Unless expressly agreed otherwise, we will not enclose any export or customs documents with the items.

Payment Service Provider; Packaging and Packaging Waste; Default in Payment; Set-off; Right of Retention

5.1

We do not conduct any banking business with the customer and do not provide any financial or payment services. Insofar as we mention payment service providers (e.g. PayPal), payment services are handled entirely by the payment service providers in compliance with the respective terms and conditions of the payment service provider mentioned.

5.2

The customer is responsible for orderly disposing all pack-aging and packaging waste at its own cost.

5.3

During delay in payment we are entitled to demand the statutory default interest in the amount of currently nine (9) per-centage points above the respective base interest rate as well as the (variable) statutory default lump sum in the amount of currently EUR 40.00. We reserve the right to claim higher damages for delay.

5.4

The customer shall only be entitled to set-off a counterclaim insofar as the customer´s counterclaim has been established by final enforceable judgment, is ready for decision or is uncontested.

5.5

The customer shall only be entitled to exercise a right of retention insofar as the customer´s counterclaim has been established by final enforceable judgment, is ready for decision or is uncontested and is based on the same contractual relationship

Delivery Time; Force Majeure; Retention of Self-Delivery; Approvals; Early or Partial Deliveries; Alterations

6.1

Delivery times (deadlines or periods) must be confirmed in writing to be binding. Delivery periods shall commence on the day of acceptance of order, however, not prior to clarification of all details of the order and not prior to timely fulfilment of the customer’s contractual duties. Such delivery periods are met if we have given timely notice that items are ready for shipment.

6.2

If we are in default of delivery, the customer shall grant us a reasonable grace period that shall not be less than two (2) weeks. The customer shall be entitled to withdraw from the contract only after this grace period has expired without success.

6.3

Force majeure (which shall include strikes, pandemics, epidemics as well as other events deemed as force majeure according to international practice) resulting in our inability to deliver through no fault of our own shall result in an extension of the delivery time in question for as long as the said circumstance prevails. We shall be entitled to withdraw from the contract if a delivery becomes unreasonable due to these circumstances.

6.4

In the event of non-delivery or untimely self-delivery, we shall not be in default unless we are responsible for the non-delivery or untimely self-delivery. We shall be entitled to withdraw from the contract (Rücktritt vom Vertrag) if it is certain that self-delivery with the items ordered, despite the conclusion of a congruent covering transaction (kongruentes Deckungsgeschäft), will not take place for reasons for which we are not responsible. Any statutory rights of withdrawal (gesetzliche Rücktrittsrechte) shall remain unaffected.

6.5

Our fulfilment of the contract based on this GTC is subject to any required approval of export permit issued by the competent authority resp. bindingly asserting the freedom of exportation and that no ban on exports or other restrictions arising from export control regulations exist. Any additional permits or registrations of items required in accordance with the applicable legislation in the country of destination must be evaluated by the customer and applied for or carried out at the respective competent authority.

6.6

Early or partial deliveries shall be admissible unless unreasonable to customer.

6.7

Any alterations submitted after acknowledgement of order shall invalidate the delivery deadline or period originally agreed unless accepted by us again in writing.

Retention of title

7.1

The items delivered shall remain our property until full payment of all claims arising from the contract and all other claims which we subsequently obtain on the customer in direct connection with the items delivered - irrespective of the legal grounds. Furthermore, the items shall remain our property as items subject to retention of title until the fulfilment of all other claims which we obtain on the customer - irrespective of the legal grounds - now or in the future (including all balance claims from current account). In the case of a current account, the items subject to retention of title shall serve as security for our balance claim.

7.2

The customer shall be entitled to resell the item subject to retention of title in the ordinary course of business. The right to resell shall not exist if the customer is in default of payment or has not only temporarily suspended payments. We shall be entitled to revoke the authorisation to resell if an objectively justified reason exists and as long as we are the owner of the items subject to retention of title. The customer hereby assigns to us all claims including all ancillary rights to which the customer is entitled from the resale of the items subject to retention of title, and we accept this assignment.

7.3

The customer is authorised to collect the claims assigned until revoked. We may revoke the direct debit authorisation if an objectively justified reason exists. We are authorised to collect the claims ourselves, but we will not collect the claims for as long as the customer duly meets its payment obligations.

7.4

If the customer does not meet its payment obligations and we are therefore authorised to collect the claims ourselves, the customer must hand over to us on request a list of all items subject to retention of title, the claims assigned and the names and addresses of the debtors with the amount of the claims. Upon request, the customer is obliged and we are entitled to notify the debtors of the assignment of the claim.

7.5

As long as the retention of title persists, any pledging, transfer of ownership by way of security, leasing or any other transfer or modification of the items subject to retention of title which impairs our security shall require our prior written consent. In the event of access by third parties, e.g. compulsory enforcement measures, the customer must inform us without undue delay and provide us with all information and documents required to protect our rights, as well as inform the third party of our reservation of title. The customer must mark the items subject to retention of title as our property and inform third parties of our retention of title in the event of the transfer of ownership by way of security of its entire stock of items as well as exclude the items subject to retention of title from the transfer by way of security by means of an express declaration.

7.6

The customer is obliged to handle the items subject to reten-tion of title with care and to notify us of any loss, destruction or damage without undue delay. The customer shall insure the items subject to retention of title sufficiently against theft, burglary, water and fire damage and keep them under insurance cover. The customer hereby assigns to us the claims to which it is entitled against its insurer in the event of a claim, insofar as they relate to the property or coproperty of us, and we accept this assignment.

7.7

At the customer´s request, we are obliged to waive the retention of title or to release securities at our discretion if the customer has fulfilled all claims in connection with the items subject to retention of title or if the value realisable from the total securities granted to us from retention of title, transfer of ownership by way of security and assignment in advance exceeds the total sum of the claims on the customer by more than ten (10) percent.

Notice of Defects; Claims for Defects; No Right of Withdrawal (Widerrufsrecht); Declaration of No Objection

8.1

The customer must inspect the items after delivery without undue delay. The items delivered shall be deemed to have been approved by the customer if we are not notified in writing of a defect (i) in the case of obvious defects without undue delay, but no later than seven (7) calendar days after delivery of the items to the customer, or (ii) in the case of hidden defects without undue delay, too, but no later than ten (10) calendar days after discovery of the defect.

8.2

If a defect actually exists and the customer notifies this defect in due time in accordance with Section 8.1, we are entitled, at our discretion, first to repair the item affected by the defect or to deliver an item free of defects (supplementary performance ((Nacherfüllung)).

8.3

With the exception of claims for damages due to defects, claims for defects shall become time-barred twelve (12) months after delivery of the items to the customer.

8.4

The customer shall only be entitled to claims for damages due to defects insofar as our liability is not excluded or limited in accordance with Section 9 of these GTC. Further claims or claims other than those governed by this Section 8 due to a defect are excluded.

8.5

Since contracts based on this GTC cannot be considered as consumer contract (Verbrauchervertrag), the customer has no right of revocation (Widerrufsrecht).

8.6

The provisions of this Section 8 shall not affect claims for defects that we have concealed fraudulently or that are covered by a guarantee of quality or durability.

8.7

The customer must enclose a declaration of no objection (Unbedenklichkeitserklärung) for each single item if the customer returns, for example on the basis of a statutory right of withdrawal, items to us. The declaration of no objection can be downloaded at: https://heidolph-instruments.com/documents/service/DE/Garantie_Unbedenklichkeitserklaerung.pdf. The customer must complete and use the sample shown on the aforementioned page.

Liability; Limitation of Liability; Statute of Limitations

9.1

We shall be liable only for intent and gross negligence as well as for breach of a material obligation whose observance is vital for performance of the contract and on which customer may reasonably rely (“cardinal obligation”).

9.2

We are not liable for our sub-suppliers because they do not act as our vicarious agents.

9.3

In case of slightly negligent breach of a cardinal obligation, our liability shall be limited to typical damages foreseeable at the time of conclusion of the contract.

9.4

We shall not be liable for slightly negligent breach of collateral duties other than cardinal obligations.

9.5

We shall only be liable for initial impossibility if we were aware of the impediment to performance or the lack of knowledge is due to gross negligence or if the initial impossibility constitutes a breach of a cardinal obligation.

9.6

Where our liability is excluded or limited, the liability for fault of legal representatives, employees and vicarious agents shall be limited or excluded as well, as the case may be.

9.7

With the exception of claims in tort, damage claims of the customer for which our liability is limited pursuant to this Section 9 will become time-barred one (1) year from the statutory commencement of the limitation period.

10.

Product and Producer Liability; Items for Professional Users

10.1

If the customer is responsible for product damage (for example, due to a defect in the design of the product into which our items have been incorporated), the customer shall indemnify us against third-party claims to the extent that the cause lies within the customer´s sphere of control and organisation and the customer itself is liable in relation to third parties.

10.2

Within the scope of its obligation to indemnify, the customer will reimburse our expenses pursuant to Sections 683, 670 the German Civil Code (BGB) arising from or in connection with a third-party claim including recall actions carried out by us. We will inform the customer about the content and scope of recall measures - as far as possible and reasonable - and give the customer the opportunity to provide its comments. Further legal claims shall remain unaffected.

10.3

The items are intended for professional users only and are not intended to be in the hands of consumers or to be given by the customer to consumers.

11.

Applicable Law; Arbitration Clause; German Wording; Severability Clause

11.1

Contracts between us and the customer shall be governed by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts on the International Sale of Goods and the conflict of law rules are excluded.

11.2

The choice of law according to Section 11.1 shall not apply insofar, mandatory national law is applicable to the contract based on this GTC in the country of the customer or the country to which our delivery is to be made.

11.3

Our registered office as shown in the commercial register shall be the exclusive place of performance for all delivery and payment obligations, unless otherwise agreed.

11.4

Any disputes arising from or in connection with these GTC, contracts based on these GTC or our business relations from the entrepreneur/B2B online shop or concerning their validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS)) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of three members. The seat of arbitration shall be our principal place of business. The language of the arbitration shall be English. The rules of law applicable to the merits shall be determined according to Section 11.1.

11.5

We shall remain entitled to bring actions, applications for interim injunctions and other proceedings also at the customer´s place of business or before any other court or tribunal having jurisdiction by law.

11.6

These GTC contain German wording in brackets in some places (Example). In case of ambiguity or uncertainty between the German wording in brackets and its corresponding Eng-lish wording, the German wording shall prevail.

11.7

Should one or more of the above provisions be or become invalid in whole or in part, this shall not affect the validity of the other provisions, which shall remain agreed.

11.8

An invalid provision shall be replaced by a valid provision which comes closest to the intended economic purpose. The same shall apply if a gap requiring supplementation arises during the performance of the contract.

12.

Further stipulations applicable if customer has its seat in Germany

12.1

Packaging and packaging Waste

The following provisions of this Section 12.1 shall replace Section 5.2 of these GTC:

Pursuant to Section 15, Paragraph 1, Sentence 1 of the German Packaging Act (Verpackungsgesetz), we, as the final distributor of packaging within the meaning of the same Section 15, Paragraph 1, Sentence 1 of the German Packaging Act, are obliged to take back free of charge used, completely emptied packaging of the same type, shape and size as that placed on the market by us at the place of actual handover or in the immediate vicinity thereof, in order to reuse it or to recycle it professionally and properly. The return of the packaging must be made DDP (Incoterms 2020) Walpersdorfer Str. 12 91126 Schwabach, Germany. The costs incurred for the recycling shall be borne by the customer. If the customer will not return the packaging supplied by us in accordance with this provision, the customer shall be responsible for the professional and proper recycling of the packaging at the cus-tomer´s own expense.

13.

Further stipulations applicable if customer has its seat in Italy

13.1

Packaging and packaging Waste

The following provisions of this Section 13.1 shall replace Section 5.2 of these GTC:

Unless otherwise required by applicable law, the customer is liable for the disposal of (i) the goods or any port thereof if they are deemed by law to be “waste” or (ii) any items replaced by the goods or any part thereof. If we are required by applicable law, including the WEEE legislation, European Directive 2022/96/EC (waste Electrical and Electronic Equipment) and related legislation in EU 0member states, to dispose of waste equipment or any part thereof, the customer shall, unless prohibited by applicable law, pay in addition to the purchase price either (i) our applicable fees for disposal (including all handling transport and disposal costs and a reasonable mark up for overheads) incurred in disposing of such goods.

14.

Further stipulations applicable if customer has its seat in France

14.1

Retention of title

The following provisions of this Section 14.1 shall replace Section 7 of these GTC:

We shall be and remain the exclusive owner of all items until full and entire payment of all the purchase price plus any taxes (if applicable) and satisfaction of our further claims arising out of this contract, including interest payments and other costs. The items are determined for the sole use by the customer; prior to the transfer of title to the customer, the customer is not permitted to make any assignments over the items, the customer is especially not permitted to sell, pledge or to encumber the items with any security interest in favour of an affiliate or a third party.

15.

Further stipulations applicable if customer has its seat in Poland

15.1

Packaging and packaging Waste

The following provisions of this Section 15.1 shall replace Section 5.2 of these GTC:

Pursuant to the applicable law we, as the final distributor of packaging are obliged to take back free of charge used, completely emptied packaging of the same type, shape and size as that placed on the market by us at the place of actual handover or in the immediate vicinity thereof, in order to reuse it or to recycle it professionally and properly. The return of the packaging must be made DDP (Incoterms 2020) Walpersdorfer Str. 12 91126 Schwabach, Germany. Unless otherwise required by applicable law, the costs incurred for the recycling shall be borne by the customer. If the customer will not return the packaging supplied by us in accordance with this provision, the customer shall be responsible for the pro-fessional and proper recycling of the packaging at the customer´s own expense.

Status March 2023

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